By Brandi O. Brown, J.D.
There was sufficient evidence to convince a reasonable jury that providing a daily interpreter and a video relay phone were reasonable accommodations for a deaf special education teacher, a federal district court in Virginia concluded, denying summary judgment in a school district’s favor on the teacher’s failure-to-accommodate claim. Congress contemplated this accommodation, the court noted, and impromptu verbal communication was related to an essential job function. The employer was entitled to summary judgment, though, on the employee’s ADA wrongful discharge and retaliation claims (Smith v. Loudoun County Public Schools, February 18, 2016, Cacheris, J.).
A good start. Things went pretty smoothly for the employee for almost two years after her hire in 2007 as a teacher of special education for the hearing impaired. Her elementary school employer scheduled interpreters for planned events and she also had access to an as-needed interpreter service, as long as she could anticipate that need ahead of time. In her first school year, the employee also worked closely with two other teachers who were fluent in American Sign Language. A third fluent teacher joined the faculty in the spring of 2008. The employee's first-year reviews were positive, noting her "positive impact" on students.
The first half of her second year also went by without incident, and the employee earned a positive review at the end of the semester. However, in the spring of 2009, things took a downward turn. First, the employee disagreed with a new approach to teaching being pushed by the administration. Also, she submitted a request for a full-time interpreter and, shortly thereafter, she received the first of several documented reprimands. Her performance review remained satisfactory overall (although it did note areas for improvement, which would become an issue later), and her contract was renewed.
From bad to worse. Unfortunately, the situation went from bad to worse. During the following summer and into her third year, all three of the ASL-fluent teachers on whom the employee relied for impromptu interpretation were transferred elsewhere. The school underwent administration changes and adopted a new grade-level assessment system for disabled students. Meanwhile, investigation into her request for a full-time interpreter languished. (The employee submitted a renewed request, which became part of the ongoing investigation.) Also, the video relay phone that had previously been housed in her classroom was removed. And the employee received the first in another string of reprimands based on interpersonal conflicts.
In November, the employee’s requests for accommodation, including her request that a video relay phone be placed back in her classroom, were denied. Shortly thereafter, she learned that she had been placed on a short list for contract nonrenewal for the following year. She was assigned mentors and worked to improve the areas identified as problematic, but ultimately her contract was not renewed.
Reasonable accommodation claims survive. Fending off earlier procedural challenges to her disability discrimination suit, the employee now faced the employer's motion for summary judgment on the merits of her failure to accommodate claim. The court found a genuine dispute existed as to whether the employer reasonably denied her request for a daily interpreter and an in-classroom video relay phone. According to the employee, that accommodation would allow her to perform essential functions of her job, including regular communication and collaboration with others. Congress, the court noted, had "clearly contemplated" that such an accommodation could qualify as reasonable and ADA regulations similarly noted such an accommodation was "common."
Impromptu communication needs. Moreover, there was evidence that the ability to engage in impromptu verbal communication was related to an essential function of the employee's job. Her IEP management role required collaboration with other teachers, sometimes on a daily basis. Likewise, lesson plan development required impromptu coordination with other teachers. This need was brought into further relief by the fact that her performance appeared to improve when she worked with other teachers acting as informal interpreters. And the employer seemed to recognize a need for such communication, promising to install a video interpretation device, although it never actually did so. Moreover, on-call interpreters were not a viable alternative, the court explained; because they had to be requested several days in advance, they could not handle the employee’s daily communication needs. Also, the employer failed to satisfy its burden to show undue hardship, having offered no estimate of the costs associated with a daily interpreter or the effect of an interpreter on the budget.
Video relay phone. A jury also could find that use of a video relay phone was a reasonable accommodation. Not only would it allow the employee to communicate with off-campus individuals, but it would allow her to respond to emergency situations and to request help with unmanageable students. Indeed, the employer appeared to have recognized that need, based on its promise to provide one, its actual provision of one for a short time, and the fact that other deaf teachers had video phones. Moreover, access to such a phone outside the classroom was arguably an ineffective accommodation, particularly with regards to emergency and behavioral situations. And, because such phones were freely provided by the FCC, the employer could not satisfy its undue hardship burden with regards to this accommodation request either.

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